People v. Green

Balletta, J.,

dissents and votes to affirm the judgment appealed from, in the following memorandum in which Thompson, J. P., concurs. I must respectfully disagree with my colleagues in the majority. This court recently stated that "[a]s a general proposition, a defendant is entitled to show the hostility of any witness who testifies against him * * * (see, People v McDowell, 9 NY2d 12, 15). However, '[t]he extent to which an examination may go for the purpose of proving the hostility of a witness must be, to some extent, at least, within *467the discretion of the trial judge’ (People v Brooks, 131 NY 321, 326)” (People v Folk, 145 AD2d 505; see also, People v MacDonald, 53 AD2d 980; People v Lane, 9 AD2d 979).

At the trial herein, David Stines, apparently the only eyewitness to the assault who was able to identify the defendant as one of the assailants, was extensively cross-examined about his relationship with the defendant and the defendant’s family. Defense counsel was also able to elicit the fact that although he had been friendly with the Green family at one time in the past, he was no longer friendly with them. Stines stated that he was convinced by his parents to sever the friendship because the defendant’s parents had once accused Stines’s parents of abusing Stines’s sister. Emmit Stines, David’s brother, testified on cross-examination that he blamed the Green family for their part in influencing Stines’s sister to leave, and, in his words, influencing her to live with the Greens in "an immoral role”. He also claimed that he and the defendant had a fight in which the defendant attacked him with a machete.

The majority makes much of the fact that Stines did not come right out and say that he "hated” the defendant. However, it is readily apparent that any bias or hostility on the part of Stines, as well as the motivation therefor, towards the defendant was fully before the jury. Thus, the proffered testimony of Moore would have only been cumulative on the issue, and the trial court therefore did not abuse its discretion in excluding it (see, People v Polk, 84 AD2d 943).

Furthermore, Moore’s claim that Stines had told him that he has asked the victim for $25 in return for naming the attackers was clearly irrelevant to the question of Stines’s purported hostility against the defendant. There is no indication that Stines conditioned the $25 upon his naming the defendant as the victim’s assailant, and the majority’s leap in logic in connecting the two is unsupported by the record.

The defendant’s remaining contentions are equally without merit, and I therefore vote to affirm the judgment.